Pushback time: The Supreme Court strikes back
Whether
we are talking about the governments of other independent nations or
the independent legislative and judicial branches of government in
this nation, the Bush administration has been all about encroachment.
To
encroach means to “advance
beyond proper limits.” That has been the Bush administration, in
essence, in its conduct of the nation’s affairs, foreign and
domestic. Now, as the sun settles on eight years of arrogance,
incompetence, and failure, those who have been encroached upon are
pushing back.
One
of the administration’s most brazen acts of encroachment has been
its assault on the rights of the people, the rule of law, and the
prerogatives of the judiciary. Now the highest court in the land has
struck back with a blow that throws Bush’s detainee policy into
disarray and bolsters the right of habeas
corpus while
crippling the President’s strategy of creating…
By
Max J. Castro Read Spanish Version
majcastro@gmail.com
Whether
we are talking about the governments of other independent nations or
the independent legislative and judicial branches of government in
this nation, the Bush administration has been all about encroachment.
To
encroach means to “advance
beyond proper limits.” That has been the Bush administration, in
essence, in its conduct of the nation’s affairs, foreign and
domestic. Now, as the sun settles on eight years of arrogance,
incompetence, and failure, those who have been encroached upon are
pushing back.
One
of the administration’s most brazen acts of encroachment has been
its assault on the rights of the people, the rule of law, and the
prerogatives of the judiciary. Now the highest court in the land has
struck back with a blow that throws Bush’s detainee policy into
disarray and bolsters the right of habeas
corpus while
crippling the President’s strategy of creating a legal black hole
at the U.S. Navy base in Guantánamo.
Three
times the Bush administration has tried to find legal means to deny
prisoners at Guantanámo the right to challenge their detention
in U.S. courts. Three times a Supreme Court loaded with conservatives
has found those means unconstitutional.
This
time, in a 5-4 decision, the Court found that the Military
Commissions Act, the administration’s latest effort to get around
two earlier Supreme Court decisions — and which a compliant Congress
approved on the eve of the 2006 elections — improperly suspends
habeas
corpus. The
Constitution allows the suspension of habeas
corpus only
in cases of rebellion or invasion.
Writing
for the majority, Justice Anthony M. Kennedy rejected the
government’s case, writing that “within the Constitution’s
separation-of-powers structure few exercises of judicial power are as
legitimate or as necessary as the responsibility to hear challenges
to the authority of the Executive to imprison a person.” Kennedy
noted that “some of these petitioners have been in custody for six
years with no definitive judicial determination as to the legality of
their detention.”
That
Kennedy’s insistence on judicial review is not a theoretical
concern was underscored by an eight-month long investigation
conducted in 11 countries and three continents by McClatchy. It was
published in The
Miami Herald
shortly after the Supreme Court ruling. The investigation concluded
that “there
are dozens of men — some officials say hundreds — whom the United
States have wrongfully imprisoned in Afghanistan, Cuba and elsewhere
on the basis of flimsy or fabricated evidence, personal scores or
bounty payments.”
While
the Supreme Court decision is welcome, the fact that four members of
the Court — including the Chief Justice — were willing to dispense
with habeas
corpus and
allow the prospect of tremendous miscarriages of justice, is
shocking. It is also the legacy of Republicans in the White House for
28 out of the last 40 years. That the difference between holding or
not holding the line for the Constitution and habeas
corpus was
a single vote highlights the importance of this year’s presidential
election.
That
point was further underlined by the contrasting reaction of the
candidates to the Court ruling. While Obama hailed the decision,
McCain expressed concern and said that we should pay attention to the
dissent by Chief Justice John G. Roberts Jr., which sided with the
administration’s contention that the provisions in the Military
Commissions Act are more than sufficiently generous as a way for
detainees to challenge their status.
“These
are enemy combatants; they are not American citizens,” McCain said.
Someone should ask Mr. McCain, in light of the McClatchy
investigative report: How do you know, absent a fair and impartial
judicial review, that they are enemy combatants and not innocent
people detained as a result of a mistake, a vendetta, or a payoff?
